ACLU asks
court to end NSA surveillance program that collects phone call
data
NEW YORK —
Civil liberties advocates on Friday asked a
federal court here to end the National Security
Agency counterterrorism program that collects
data on billions of phone calls by Americans,
arguing that it violates the Constitution and
was not authorized by Congress.
The case was brought by the American Civil
Liberties Union after the publication in June of
a court order to Verizon Business Network
Services that showed the phone company was
required to turn over to the NSA all call detail
records of its customers, including the length
and time of calls but not the content.
The sweeping nature of that collection, which was placed
under court supervision in secret in May 2006, set off a furious
public discussion over whether the agency’s efforts to
thwart terrorist attacks have overstepped the legal and
common-sense boundaries of privacy.
The ACLU, which is a Verizon Business customer, said the NSA
program violates the Constitution’s guarantees of privacy and of
freedom of association. In the most significant legal challenge
to the NSA’s collection, the ACLU also said that the program,
which covers all major phone companies, exceeds the scope of its
authorizing legislation. That statute, Section 215 of the
Patriot Act, was passed in the weeks after the Sept. 11, 2001,
terrorist attacks.
“This vast dragnet is said to be authorized by Section 215 of
the USA Patriot Act, but nothing in the text or legislative
history of that provision remotely suggests that Congress
intended to empower the government to collect information on a
daily basis, indefinitely, about every American’s phone calls,”
said Jameel Jaffer, one of two ACLU attorneys arguing the case
before U.S. District Judge William H. Pauley III in lower
Manhattan.
A Justice Department attorney countered that the program is
constitutional and that Congress was fully informed when it
authorized and reauthorized Section 215. Moreover, he said, the
ACLU has no standing to bring the case because it cannot prove
that its members have been harmed by the NSA’s use of the data.
“The program is carefully calibrated for the purpose [of
counterterrorism] and is not the kind of indiscriminate use
of the data that the plaintiffs suggest,” said Assistant
Attorney General Stuart F. Delery.
In just over two hours of arguments, Pauley showed some
skepticism of the government’s assertion that Congress really
understood it was approving a mass call-tracking program when it
reauthorized the Patriot Act in 2010 and 2011.
Delery argued that Congress was provided classified briefings
and papers laying out the program’s scope. He also said
intelligence committees of both houses, which “stand in the
shoes of the public,” were fully briefed.
Pauley noted, however, that “a veteran congressman,” Rep. F.
James Sensenbrenner Jr. (R-Wis.), submitted an amicus brief in
the case “in which he said he had no idea of what was happening”
when he voted to reauthorize Section 215.
Delery argued that the ACLU’s claims of harm are
“speculative” because it had no evidence that the NSA ever
reviewed any of its members’ call records or that anyone was
dissuaded from calling the civil liberties group because of fear
their calls would be monitored.
He also said that the program was constitutional because the
Supreme Court in a 1979 case, Smith v. Maryland,
concluded that phone records of the sort at issue here were not
protected by the Fourth Amendment. He said that the program was
useful and necessary “to find connections between known and
unknown terrorists” and “unless you can collect records over
time” and across carriers, the NSA’s analytic tools to identify
those connections would not work effectively.
But Alex Abdo, another ACLU lawyer, argued that the mere fact
that the organization’s records were collected on a sustained
basis is an invasion of privacy under the Fourth Amendment. He
said that the Supreme Court in 1979 was not addressing mass
collection but rather the calls of one suspect over a few days.
Jaffer also argued that if the government’s view of the
statute is upheld, then the door is open to the bulk collection
of other types of records under other legal authorities — not
just Section 215.
“The Supreme Court has admonished many times that the
Congress doesn’t hide elephants in mouse-holes,” he said. “I
think that’s what the government is proposing here.”
http://www.washingtonpost.com/world/national-security/aclu-asks-court-to-end-nsa-surveillance-program-that-collects-phone-call-data/2013/11/22/deb972b4-53b7-11e3-9e2c-e1d01116fd98_story.html